DC v R

Case [2019] NSWCCA 234 2 October 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DC v R [2019] NSWCCA 234
Hearing dates: 17 June 2019
Date of orders: 02 October 2019
Decision date: 02 October 2019
Before: Bathurst CJ at [1];
Price J at [5];
N Adams J at [160]
Decision:
(1) Grant leave to appeal under r 4 of the Criminal Appeal Rules in respect of ground 3.
(2) Allow the appeal.
(3) Quash the convictions and sentences.
(4) Order that there be a re-trial of the appellant.
(5) Remit the matter for mention at the District Court at Sydney on 11 October 2019 at 9.30am.

Catchwords: CRIME – Appeals – Appeal against convictions – sexual assault – rule 4 of the Criminal Appeal Rules applies to grounds of appeal – whether error by judge in admitting appellant’s answers in an ERISP where no objection taken at trial – forensic choice by appellant’s counsel – appellant gives evidence at trial – admissible as prior inconsistent statements – admissible as admissions – no miscarriage of justice – whether error by judge in giving direction on lies or on consciousness of guilt – forensic choice by appellant’s counsel that no direction be given – Crown’s closing address creates risk of consciousness of guilt reasoning – whether appellant bound by forensic choice made by trial counsel – whether fairness to appellant required a direction on lies notwithstanding trial counsel’s request – whether miscarriage of justice was occasioned
Legislation Cited: Crimes Act 1900 (NSW) ss 66A, 61M
Criminal Appeal Rules r 4
Evidence Act 1995 (NSW) ss 43, 55, 56, 81, 137
Cases Cited: CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
Dhanoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
James v The Queen (2014) 253 CLR 475; [2014] HCA 6
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20
R v Cameron (1983) 2 NSWLR 66
Roos v R [2019] NSWCCA 67
Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65
The Queen v Taufahema (2007) 228 CLR 232; [2007] HCA 11
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28
Texts Cited: The Honourable Justice V Bell AC, “Jury Directions: the Struggle for Simplicity and Clarity, Banco Court Lecture, Supreme Court of Queensland, 20 September 2018”, Banco Court Lecture, Supreme Court of Queensland, 20 September 2018.
Category: Principal judgment
Parties: DC (Appellant)
Regina (Respondent)
Representation:
Counsel:
Mr T Ramrakha (Appellant)
Ms B Baker (Respondent)
Solicitors:
Pope & Spinks (Appellant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2016/321508; 2017/121873
Publication restriction: Non-publication as to the complainants name or any information that would identify the complainant. Non-publication of this judgment until the proceedings against the appellant in the District Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DC v R

Details

AGLC: DC v The Queen [2019] NSWCCA 234
Case: [2019] NSWCCA 234
Decision Date: 02 October 2019

CaseChat Overview and Summary

The appellant, DC, was convicted of sexual assault and appealed against his convictions. The appeal was heard in the High Court of Australia. The appellant argued that there were errors in the judge's admission of his answers in an Early Resolution Interview Schedule (ERISP) and in the judge's directions to the jury on lies and consciousness of guilt. The appellant's counsel had chosen not to object to the admission of the ERISP answers and not to request a direction on lies, but the appellant argued that these were errors that required the convictions to be quashed.
The legal issues before the court were whether the appellant was bound by the forensic choices made by his trial counsel, and whether fairness to the appellant required a direction on lies notwithstanding the trial counsel's request. The court held that the appellant was bound by the forensic choices made by his trial counsel, and that there was no miscarriage of justice in the judge's directions to the jury. The court also held that the admission of the ERISP answers was admissible as prior inconsistent statements and admissions, and that there was no miscarriage of justice in this regard.
The court noted that the appellant had given evidence at the trial and had chosen to do so. The court held that the admission of the ERISP answers was a forensic choice by the appellant's counsel, and that the appellant was bound by this choice. The court also held that the directions given by the judge to the jury on lies and consciousness of guilt were not erroneous, and that there was no risk of a consciousness of guilt reasoning arising from the Crown's closing address. The court held that there was no miscarriage of justice in the judge's directions to the jury.
The appeal was dismissed. The convictions of the appellant were upheld.

Orders